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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 92-3329
Summary Calendar
_______________
ALLEMAND BOAT COMPANY,
Plaintiff-Appellee,
VERSUS
EUGENE KIRK,
Defendant-Appellant.
_______________
No. 92-3330
Summary Calendar
_______________
ALLEMAND BOAT COMPANY,
As Owner of the M/V CAPTAIN AL, Praying for Exoneration from
and/or Limitation of Liability,
Plaintiff-Appellee,
VERSUS
EUGENE KIRK, et al.,
Claimants,
EUGENE KIRK,
Claimant-Appellant.

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* Local Rule 47.5.1 provides: "The publication of opinions that have
no precedential value and merely decide particular cases on the basis of well-
settled principles of law imposes needless expense on the public and burdens
on the legal profession." Pursuant to that rule, the court has determined
that this opinion should not be published.
2
_______________
No. 92-3331
Summary Calendar
_______________
EUGENE KIRK,
Plaintiff-Appellant,
VERSUS
ALLEMAND BOAT COMPANY,
Defendant-Appellee.
_________________________
Appeals from the United States District Court
for the Eastern District of Louisiana
(CA 91 1600 K, CA 91 2329 K & CA 91 3386 K)
_________________________
(November 18, 1992)
Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
In this matter, we consider three consolidated appeals
resulting from adverse judgments against Eugene Kirk stemming from
an alleged injury he sustained as a deckhand for Allemand Boat
Company ("Allemand"). We conclude that we are without jurisdiction
as to some of the matters urged on appeal, and as to the other
matters, finding no error, we affirm.

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1 The appeal of the declaratory judgment proceeding is No. 92-3329.
2 We refer hereinafter to this action as the limitation suit. The
appeal in this action is No. 92-3330.
3
I.
The alleged injury occurred in November 1990. In April 1991,
Allemand filed a complaint for declaratory judgment1 against Kirk,
seeking a declaration that Allemand was not liable for maintenance
and cure on the ground that Kirk had wilfully concealed a pre-
existing condition and was not injured in the service of the ship.
Allemand's attorney requested Kirk's counsel to file some response
to the action and threatened to seek a default judgment if
responsive pleadings were not filed. Kirk's counsel, indicating
that he did not wish to jeopardize a Jones Act proceeding he
planned to file in state court, refused to respond in the federal
action. Consequently, Allemand requested and received a clerk's
entry of default.
On June 12, 1991, at a conference with counsel, the magistrate
judge asked Kirk's attorney to file an answer and to move to set
aside the default. That same day, Kirk's counsel filed only an
answer and failed to move to set aside the default.
Two days later, Kirk filed a state court Jones Act suit
regarding the incident. On June 25, 1991, Allemand filed a second
federal suit seeking exoneration from and/or limitation of
liability.2 A month later, the state Jones Act proceeding was
stayed pending the outcome of the limitation and declaratory suits.
The federal district court directed that all claims against

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3 The appeal of the federal Jones Act and general maritime claim is
No. 92-3331.
4
Allemand should be made in the limitation action. The same judge
began handling both the limitation and the declaratory suits.
On September 10, 1991, in the absence of any response from
Kirk, Allemand filed a request for entry of default in the
limitation proceeding. On that date, Kirk filed an answer in the
limitation case, despite the requirement in Rule F(5) of the
Supplemental Rules for Certain Admiralty and Maritime Proceedings
that a claim be filed first. Also on September 10, Kirk filed a
separate Jones Act and general maritime law action in federal
court.3 Eight days later, Kirk filed motions to set aside the
preliminary entries of default in the limitation and declaratory
suits.
On September 23, 1991, the district court denied, without
prejudice, the motions to set aside. The order was grounded on the
fact that Kirk had failed to file a claim in the limitation action,
as required by rule F(5); that the motions to set aside were not
accompanied by required memoranda as required by the local rules;
and that the motions presented no legal or factual grounds in
support. The court also directed Allemand to show cause why the
limitation action should not be dismissed for failure to prosecute
or to file a motion for default judgment; Kirk's attorney was told
to send a copy of the order to his client.
In response to the order, Allemand filed motions for default
judgment and for costs and/or sanctions in the limitation and

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declaratory suits. On October 23, 1991, the district court granted
the default motions and motions for costs and/or sanctions as
unopposed; on October 28, the court entered a final judgment in the
declaratory case, declaring that Kirk is not entitled to mainte-
nance and cure; on October 29, the court entered judgment in the
limitation action in favor of Allemand, exonerating it from
liability.
On December 11, 1991, Allemand filed a motion for summary
judgment in the federal Jones Act and general maritime case,
asserting that it was barred by res judicata as a result of the
other two federal judgments. On January 9, 1992, Kirk moved to
dismiss his federal Jones Act and general maritime proceeding. On
January 10, the court granted Allemand's summary judgment motion as
unopposed. On February 28, Kirk's motion for dismissal was denied.
On February 19, Kirk filed motions for relief from judgment in
the limitation and declaratory suits, pursuant to Fed. R. Civ.
P. 60(b), which the district court denied on March 25. In the same
order, the court denied Kirk's motion for reconsideration of the
summary judgment in the Jones Act and general maritime proceeding
and dismissed the case with prejudice.
II.
Allemand contends that we are without jurisdiction to review
the final judgments entered on October 28 and 29. We agree.
Kirk's notices of appeal in the declaratory and limitation actions
state that Kirk appeals "from the order and judgment entered . . .

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6
in favor of the plaintiff, and from the denial of defendant's
Motion for Relief from Judgment entered on March 26, 1992, and from
the imposition of sanctions in this matter." According to Fed. R.
App. P. 4(a)(1) and (4), however, a notice of appeal must be filed
no later than thirty days following the entry of final judgment or
of an order denying a motion made under Fed. R. Civ. P. 59.
The instant motions for relief from judgment do not qualify as
rule 59 motions, for the purpose of tolling the time for taking an
appeal, as they were served more than ten days after judgment, see
rule 59(b), (d), and, in fact, were not filed and served until
almost six months had passed. See Harcon Barge Co. v. D & G Boat
Rentals, 784 F.2d 665, 667-68 (5th Cir. 1986) (en banc). Thus, we
cannot review directly the default judgments entered in October;
our appellate jurisdiction is limited to consideration of the
district court's denial of the rule 60(b) motions for relief from
judgment entered in the limitation and declaratory actions and to
review of the judgment of dismissal in the Jones Act and general
maritime case.
III.
We review only for abuse of discretion a district court's
denial of a rule 60(b) motion for relief from judgment. Seven
Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 (5th Cir. Unit A Jan.
1981). Appellate review of a motion denying relief from judgment
does not entail consideration of the underlying judgment. Browder
v. Director, Dep't of Corrections, 434 U.S. 257, 263 n.7 (1978).

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We affirm the denial of the motions for relief from judgment
for essentially the reasons set forth by the district court in its
Order and Reasons entered in the declaratory action on March 26,
1992. The court noted that Kirk failed to respond despite being
properly served and being warned by both the court and opposing
counsel: "[T]he undersigned judge, the magistrate judge, and
opposing counsel all worked to assist Kirk's counsel. Kirk's
counsel, however, failed to return phone calls and otherwise accept
the assistance being provided to him." The court recounted, as
well, that when it denied Kirk's motion to set aside the default,
it did so without prejudice, affording Kirk an opportunity to
rectify the problem. Having received no response from Kirk,
however, the court entered the default judgments.
As the district court stated, our test for evaluating a motion
for relief from default judgment under rule 60(b) contains the
following factors:
(1) That final judgments should not lightly be dis-
turbed; (2) that the Rule 60(b) motion is not to be used
as a substitute for appeal; (3) that the rule should be
liberally construed in order to achieve substantial
justice; (4) whether the motion was made within a
reasonable time; (5) whether )) if the judgment was a
default or a dismissal in which there was no consider-
ation of the merits )) the interest in deciding cases on
the merits outweighs, in the particular case, the
interest in the finality of judgments, and there is merit
in the movant's claim or defense; (6) whether )) if the
judgment was rendered after a trial on the merits )) the
movant had a fair opportunity to present his claim or
defense; (7) whether there are intervening equities that
would make it inequitable to grant relief; and (8) any
other factors relevant to the justice of the judgment
under attack.
Seven Elves, 635 F.2d at 402. We added that these factors must be

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weighed "in the light of the great desirability of preserving the
principle of the finality of judgments." Id.
In its order, the district court emphasized that Kirk was
trying to use rule 60(b) as a substitute for appeal, having failed
to take a direct appeal from the adverse judgments. Moreover,
"Kirk waited almost five months to seek relief. The court is hard-
pressed to find such wait to be reasonable." Regarding any merits
to Kirk's claim of injury, the court opined as follows:
Kirk provides no evidence upon which the court might
evaluate the merits of his claims. No affidavits,
deposition testimony, or documents have been introduced
to substantiate that Kirk even suffered an injury while
in the service of the plaintiff's vessel. The interest
in deciding this case on the merits and the merits of
defendant's claims, therefore, do not weigh in favor of
vacating the final judgment.
The district court also used the factors listed in Hibernia
Nat'l Bank v. Administracion Central Sociedad Anonima, 776 F.2d
1277, 1280 (5th Cir. 1985): "(1) the extent of prejudice to the
plaintiff; (2) the merits of the defendant's asserted defense; and
(3) the culpability of defendant's conduct." The court observed
that Kirk "simply fails to allege any defense" or to "offer some
credible evidence to sustain his right to the defense claimed."
The court additionally found that Kirk, as distinguished from his
attorney, was partially to blame by allowing the time for appeal to
expire and delaying in finding new counsel.
In summary, the district court concluded that
justice would be disserved by granting relief. Defen-
dant's counsel disregarded the rules of this court,
refused to accept guidance from the court and opposing
counsel, and otherwise interfered with the efficient
administration of justice. In addition, Kirk, the

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litigant, unreasonably delayed in seeking relief even
after being apprised in strong language of his counsel's
conduct and the possible ramifications.
We cannot say that the court abused its discretion in so deciding.
Accordingly, its orders denying relief from judgment must stand.
IV.
Given that the default judgments are to remain undisturbed,
res judicata bars the assertion of Kirk's Jones Act and general
maritime claims. Accordingly, we also must affirm the summary
judgment entered in that action.
V.
Kirk challenges the district court's award of $8,000 in fees
and costs in the declaratory action. Nothing in the record
convinces us that the amount awarded is unreasonable or that the
district court's finding is clearly erroneous. Apparently, the
amount is well below the costs Allemand incurred as a result of
Kirk's counsel's dilatory behavior.
VI.
We conclude that the district court properly considered the
applicable factors in denying relief from judgment. By no means
can its actions be viewed as an abuse of discretion. The judgments
appealed from, accordingly, are AFFIRMED.

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